CHILDREN AND DETENTION: Challenges to Working with Children in Detention Moderator: Adriana Ysern Panelists: Irena Lieberman Aryah Somers Greta Uehling Maria Woltjen Organizer: Annie Sovcik Detention Watch Network, April 2007

OVERVIEW OF PRESENTATION Introduction Apprehension and Detention Transfer to ORR Shelter Family Reunification Legal Options for Relief Release from ORR Shelter Removal and Deportation

INTRODUCTION Adriana Ysern, National Center for Refugee and Immigrant Children Irena Lieberman, American Bar Association Aryah Somers, The Florence Immigrant and Refugee Rights Project Maria Woltjen, Immigrant Children’s Advocacy Project at University of Chicago Law School Greta Uehling, U. S. Conference of Catholic Bishops Annie Sovcik- Lutheran Immigration and Refugee Services

APPREHENSION AND DETENTION Why do the Children Come to the U.S.? The U.S. - Mexico Border Accompanied vs. Unaccompanied The Flores Settlement Border Patrol Interior Enforcement

WHY DO THE CHILDREN COME? Reasons: – Family reunification – Violence in home and community – Work, Debts – Trafficked Numbers, Gender Breakdown and Country of Origin

The U.S. Mexico Border

Federal Responsibilities for Detention of Juvenile Aliens The Homeland Security Act of 2002 (“HSA”): Reorganized federal responsibilities for juvenile aliens and created the Department of Homeland Security (“DHS”). DHS: Juvenile responsibilities to the Bureaus of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”). Both were given responsibility for apprehending, processing, and transporting all juvenile aliens. DHS is also responsible for caring and housing accompanied aliens. Office of Refugee Resettlement (“ORR”): A section of the U.S. Department of Health and Human Services, was assigned responsibility for caring and housing unaccompanied juvenile aliens who are detained by DHS pending resolution of immigration cases enforced by DHS. Statement of Principles: Guides relationship between DHS and ORR, but discussions continue on a Memorandum of Understanding to govern the different responsibilities of the agencies for juvenile aliens. For instance, there are still different interpretations of what is an unaccompanied juvenile.

“Unaccompanied” Children The Homeland Security Act of 2002 defines an “unaccompanied alien child” as a child who: (A) Has no lawful immigration status in the United States; (B) Has not attained 18 years of age; and (C) With respect to whom- (i) there is no parent or legal guardian in the United States; (ii) no parent or legal guardian in the United States is available to provide care and physical custody. See Homeland Security Act and 8 CFR 236.3(b)(1).

“Accompanied” Children There is no definition in immigration law or in the code of federal regulations for what constitutes an accompanied child.

Flores v. Meese: Final Text of Settlement Establishing Minimum Standards and Conditions for Housing and Release of Juveniles in INS Custody Reno v. Flores is a 1993 class action lawsuit filed against INS challenging the agency’s arrest, processing, detention and release of juveniles in its custody. In 1996, the parties negotiated the Flores Settlement establishing minimum standards and conditions for detention, housing and release of unaccompanied minors taken into the custody of the INS. In a recent decision in Texas, a district court held that Flores applies to children who are classified as accompanied. (Hutto case)

APPREHENSION AND DETENTION: Border Patrol Mexican Children “Other Than Mexicans”- “OTMs” Expedited Removal and Reinstatement Border Patrol Abuse – Key Provisions of Flores – Advocacy Efforts

APPREHENSION AND DETENTION: Interior Enforcement Apprehension by state and local police – Disproportionate Impact on Mexican children Trafficking raids ICE work enforcement raids

TRANSFER TO ORR SHELTER ICE Transport from Border Patrol to Shelter Initial Admissions and Psychosocial Assessment Know Your Rights, Initial Legal Intake, and Role of Field Coordinator

TRANSFER TO ORR SHELTER: ICE Transport ICE Transport from Border Patrol to Shelter – Number and Types of Shelters – Deinstitutionalization – Number of Children Currently in Detention

TRANSFER TO ORR SHELTER: Initial Admissions at ORR Shelter Initial Admissions and Psychosocial Assessment – Shelter Environment- Caseworker, Clinician Differences from Adult Facility and DHS Responsibilities – Confidentiality – Child Contact with Family – Special Incident Reports- Border Patrol Abuse, Trafficking

TRANSFER TO ORR SHELTER: Know Your Rights and Role of GAL Know Your Rights and Initial Legal Intake – Projects Around the Country – Know Your Rights Presentation – Individual Interviews and Intake- Screening for Legal Relief Role of Immigration GAL (Child Advocate) – University of Chicago

FAMILY REUNIFICATION Identification of Sponsors Field Coordination Suitability Assessment

FAMILY REUNIFICATION: Identification of Sponsors Children have the right to be reunified with family members in the United States. 8 C.F.R. §236.3(b)(1). Preference of sponsors: (1) parent or legal guardian; (2) adult relative (grandparent, sibling); (3) other adult relative (aunt/uncle, cousins); (4) unrelated adults. Over 15,000 releases to sponsors since 3/2003.

FAMILY REUNIFICATION: Family Reunification Process Reunification Packets – Process – Criteria – Approvals and Denials – Undocumented relatives & fear of detention

FAMILY REUNIFICATION: Best Interests Determination Best Interests Determination – Suitability Assessment of Sponsors – Role of Field Coordinator – Barriers How do Children Benefit from Assessments

Legal Options for Relief Removal Proceedings, Representation Forms of Relief, Focus on SIJS National Advocacy and Legislation

Legal Options for Relief: Removal Proceedings, Representation Representation – NGOs, Pro Bono Lawyers and Clinics – Pro Se Guidelines for Children in Immigration Court – EOIR Guidelines,INS Guidelines Issues in Representation – Ethical Considerations – Working with Children in Trauma No Immigration Guardian Ad Litems in Immigration Court – Absence of Immigration GAL and impact on case

Legal Options for Relief: Forms of Relief  Special Immigrant Juvenile Status  Asylum, Withholding of Removal and Convention Against Torture (USCRI Website)  Gang  Gender  Abused and abandoned children, street children  Violence Against Women, Trafficking Visa, U Visa  Family-Based Petitions, Derivatives

Legal Options for Relief: Forms of Relief Eligibility for Special Immigrant Juvenile Status Child is unmarried and under the age of 21 (some states: under the age of 18) Child must be declared dependent in the family or superior court of the county in which the child resides The child is eligible for long-term foster care (not necessarily in foster care, but family reunification is not a viable option) due to abuse, abandonment or neglect in accordance with state law (this abuse can occur inside or outside U.S.) It is not in the best interests of the child to return to his/her country of origin or country of last habitual residence (i.e.,best interests; abusive family members, no access to medical, educational or social services)

Legal Options for Relief: National Advocacy and Legislation  ICLN  SIJ Advocacy  Feinstein Legislation  Affirmative Applications  Creation of GAL  Access to Counsel  SIJ changes  Asylum Changes  Trafficking  Gang legislation, DREAM Act

Release from the ORR Shelter  Follow-up Services and Post Release Issues

Release from the ORR Shelter: Follow-Up Services and Post Release Issues  Follow-up Services  Family Visits  Psychological Services  Post-Release Issues –  Sponsorship Falls Apart  Child’s History (Feelings of Abandonment, Separation)  Cultural Factors  Socioeconomic Factors

Release from the ORR Shelter: Representation and the Role of the GAL  USCRI’s National Center for Refugee & Immigrant Children- Role and Key Challenges  Pro Bono Program  NGO Role and Key Challenges  VERA Pro Bono Project  Immigration Guardian Ad Litem –while in ORR care & post release

Removal and Deportation  Voluntary Removals, Deportation, Voluntary Departure  Safe Repatriation

Removal and Deportation: Voluntary Removals, Deportation and Voluntary Departure  Voluntary Removals  Mexican Children- Lack of Access to Legal Counsel  Deportation and Voluntary Departure  Representation  Pro Se  Deportation Orders: In Absentia  Voluntary Departure: Payment

Removal and Deportation: Safe Repatriation  What is Safe Repatriation?  Shelter Assessment  Role of Immigration GAL- Repatriation

Removal and Deportation: National Advocacy and Legislative Issues  Feinstein Legislation  Reports on Safe Repatriation  Derivative TPS

CONCLUSION  Website Resources  USCRI Resources Webpage  CGRS - Gender-Based Asylum  Question & Answer